Citation Nr: 1324431 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-45 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of entitlement to service connection for a dental disorder (claimed as fractured jaw with loss of teeth). 2. Whether new and material evidence has been received with respect to a claim of entitlement to service connection for a lung disorder as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The file was later transferred to the RO in St. Petersburg, Florida. By rating action in November 1999 service connection was denied for a dental condition. The Veteran perfected an appeal from that determination. The Board in May 2001 denied service connection for a dental disorder. This decision is final. 38 U.S.C.A. § 7104. By rating action in February 2005, service connection was denied for a lung disorder secondary to herbicide exposure. The Veteran did not appeal this decision and no new and material evidence was received within a year of its issuance. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). As such it became final. 38 U.S.C.A. § 7105. By rating action in October 2008, the claims to reopen the claims for service connection for a dental disorder and for a lung condition were denied. The Board observes that, during the course of the appeal, a June 2011 rating decision granted service connection for Parkinson's disease with functional impairment of the right and left upper and lower extremities; coronary artery disease; hearing loss; tinnitus; left cranial nerve; and right facial nerve disorders. A 100 percent disability rating was assigned from October 27, 2009. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly. FINDINGS OF FACT 1. The Board in May 2001 denied service connection for a dental disorder. That decision is final. 2. The additional evidence received since the May 2001 Board decision denying the Veteran's claim of service connection for a dental disorder does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 3. In a February 2005 rating decision, the RO denied a claim of service connection for a lung disorder secondary to herbicide exposure. The Veteran did not appeal that determination and no new and material evidence was received within one year of its issuance. 4. The additional evidence received since the February 2005 rating decision denying the Veteran's application for a claim of service connection for a lung disorder secondary to herbicide exposure does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2001 Board decision denying service connection for a dental disability is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2012); 38 C.F.R. § 20.101 (2012). 2. As evidence received since the May 2001 Board decision is not new and material, the service connection claim for a dental condition is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.156, 3.159 (2012). 3. The February 2005 rating decision, which denied entitlement to service connection for a lung disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). 4. As evidence received since the February 2005 rating decision is not new and material, the service connection claim for a lung condition secondary to herbicide exposure is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.156, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in May 2008 the RO notified the Veteran of what evidence was required and information necessary to reopen the claims, as well as the evidence and information required to establish entitlement to the underlying claims for the benefit that is being sought. The appellant was also adequately informed of the specific basis for the prior denial of his claims of entitlement to service connection for a dental disorder and a lung disorder. Kent v. Nicholson, 20 Vet. App. 1 (2006). Notices were provided prior to the initial unfavorable decision on the claims by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Given the above, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). New and Material Evidence The Board in May 2001 denied service connection for a dental disorder. That decision is final. A February 2005 rating decision denied the claim of service connection for a lung disorder. The Veteran did not appeal that determination and no new and material evidence was received within a year of its issuance. The Veteran subsequently sought to reopen his claims in April 2008, and this request was denied in October 2008 that is the subject of the instant appeal. An unappealed decision by the RO or a decision of the Board is final. 38 U.S.C.A. §§ 7104(b), 7105. The claim may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New and material evidence is defined as evidence not previously submitted to agency decision makers, which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. at 468. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court, interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c) (4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). In order that the additional evidence may be considered new and material under the current regulatory definition of new and material evidence, the evidence must relate to the basis for the prior denial of the claim. The Board finds that the provisions of 38 C.F.R. § 3.156(b) are not for application in the present case, as there was no evidence that could be considered new and material received prior to the May 2001 Board decision (dental disorder), or within the one year period following the February 2005 rating decision (lung disorder). Again, the Veteran's request to reopen a claim of entitlement to service connection for a dental disability was last denied in a May 2001 Board decision; and the claim of entitlement to service connection for a lung disability was last denied in an unappealed February 2005 rating decision. At the time of the May 2001 Board decision, it was determined that there was no evidence that the Veteran had sustained, been treated for, or had been diagnosed with any dental trauma during service, and while he was treated for extraction of teeth, this was not considered a disability for VA purposes. At the time of the February 2005 rating decision, the RO determined that there was no evidence that the Veteran had been treated for or had been diagnosed with a lung disorder. The evidence at the time of the May 2001 Board decision and at the time of the February 2005 rating decision includes extensive service records, statements from the Veteran, and private and VA medical records dated several decades post service. The pertinent evidence added to the record since the May 2001 Board decision and the February 2005 rating decision includes private and VA treatment records showing continued treatment for the Veteran's dental condition. They do not show evidence of treatment for or a diagnosis of a chronic lung disorder, to include as secondary to herbicide exposure. Indeed, symptoms such as coughing and weezing were denied in such reports. The evidence received since the May 2001 Board decision does not show that the Veteran met the basic eligibility requirements for service connection for a dental disorder. Likewise, the evidence received since the last final rating in February 2005 does not show that the Veteran met the basic eligibility requirements for service connection for a lung disorder. 38 C.F.R. §§ 3.303, 3.304 (2012). Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the Veteran's claims and does not raise a reasonable possibility of substantiating his claims. Therefore, the Board finds that new and material evidence has not been received and the petitions to reopen the service connection claims for a dental disorder and for a lung disorder are denied. Id.; 38 C.F.R. § 3.156(a). ORDER The petition to reopen a claim of entitlement to service connection for a dental disability is denied. The petition to reopen a claim of entitlement to service connection for a lung disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs